IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


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I.I 


1.25 


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■"     Bits 


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Photographic 

Sciences 

Corporation 


33  WEST  MAIN  STREET 

WEBSTER,  N.Y.  14580 

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^.   ^\  WrS 


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CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microreproductions  /  Institut  Canadian  de  microreproductions  historiques 


Technical  and  Bibliographic  Notes/Notes  techniques  et  bibliographiques 


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D 


D 
D 
D 


D 


D 


D 


Couverture  endommagie 


Covers  restored  and/or  laminated/ 
Couverture  restaurie  et/ou  peilicuiie 


□    Cover  title  missing/ 
Letit 


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t 

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10X 

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32X 


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or  illustrated  impression. 


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shall  contain  the  symbol  -^  (meaning  "CON- 
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whichever  applies. 


Les  images  suivantes  ont  6ti  reproduites  avec  le 
plus  grand  soin.  compte  tenu  de  la  condition  et 
de  la  nettetA  de  I'examplaire  film*,  et  en 
conformity  avec  les  conditions  du  contrat  de 
filmage. 

Les  exemplaires  originaux  iont  la  couverture  en 
papier  est  imprlmte  sont  fiimAs  en  commenpant 
par  le  premier  plat  et  en  terminant  soit  par  la 
dernlAre  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration,  soit  par  le  second 
plat,  salon  le  cas.  Tous  les  autres  exemplaires 
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premiAre  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration  et  en  terminant  par 
la  dernlAre  page  qui  comporte  une  telle 
empreinte. 

Un  dee  symboles  suivants  apparaftra  sur  la 
dernlAre  image  de  cheque  microfiche,  selon  le 
cas:  le  symbols  — ►  signifie  "A  SUIVRE",  le 
symbole  V  signifie  "FIN". 


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right  and  top  to  bottom,  as  many  frames  as 
required.  The  following  diagrams  illustrate  the 
method: 


Les  cartes,  planches,  tableaux,  etc..  peuvent  Atre 
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Lorsque  le  document  est  trop  grand  pour  Atre 
reproduit  en  un  seul  clichA,  il  est  film6  A  partir 
de  I'angle  supArieur  gauche,  de  gauche  A  droite, 
et  de  haut  en  bas,  en  prenant  le  nombre 
d'images  nAcessaire.  Les  diagrammes  suivants 
illustrent  la  mAthode. 


1 

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3 

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5 

6 

SUNDRY     RESOLUTIONS 


BOARD   OF    COMMISSIONERS 

,,        J  For  carrying  into  Effed  the       ^"^  4     '^'^ 

SIXTH  ARTICLE  of  The  TREATY  of 

AMITY,   COMMERCE,    and  NAVIGATION, 


CONCLUDED    BETWEEN 


HIS     BRITANNIC    MAJESTY 


AND  THE 


,„!»■ 


;%• 


UNITED     STATES    of    AMERICA.    ■  .,.. 


.>     '        'u 


•  > 


Publifhed  for  the  Information  of  the 
Claimants  under  the  said  Article  ... 

BY  THE 

GENERAL  AGENT  for  CLAIMANTS,  S/'-—^ 


# 


-0)0<o>o<o>o<0)0<o>e< 


^ 


rniLADELPHIAt    PRINTED  BY   JAMES  HUMPHREYS,     1798. 


•  ■■rir''^illttr_iriiM  I 


»-*-' — h-  ..«*. 


■■-,  ~.y>.»>.-.r.-***^'*f;*^''»- -*-■—>-■-  - 


•v._ 


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'  .  \i  .1 ,'  I 


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.-      ■'•>;'. 


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.-^J 


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mn^HH^^^'^^NHH^ 


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SUNDRY    RESOLUTIONS,    8cc. 


OFFICE  of  the  COMMISSIONERS  under  the  Sixth 
Article  of  the  Treaty  ef  Amity,  l^cwitk  Great-Britain, 


ORDERED,  That  in  every  cafe,  oa  the  prefentraent  of  a  claim  by  an  Agent,  a 
power  of  attorney  ihall  either  be  produced  at  the  time  of  prefenting  the  claim,  or 
pending  the  confideration  thereof,  and  that  notice  be  given  to  the  Agent  according- 
ly, in  order  that  luch  power  of  attorney,  if  not  then  produced,  may  be  procured  as 
foon  as  poffible. 


Ordered,  That  the  General  Agent  for  claimants,  and  the  Agent  for  the  United 
States,  be  informed,  that  in  all  cafes  where  claimants  can  produce  evidence  refpeft- 
ing  the  folvency  of  their  debtors  during  the  operation  of  the  lawful  impediments 
complained  of,  the  Board  will  expe(^  to  have  fuch  evidence  ftated  and  laid  before 
ihcm,  without  prejudice  however  to  the  right  of  the  claimants  to  maintain,  that  it  is 
not  incumbent  on  them  to  prove  fuch  folvency. 


Ordered,  That  all  applications  for  the  examination  of  witnefles,  fliall  be  lodged 
with  the  fecretary  in  writing,  figned  by  the  Agent  of  the  party  by  whom  they  are 
to  be  adduced  ;  and  fliall  ftate  not  only  the  names  of  the  witnefles,  but  the  points 
cenerally  on  which  they  are  to  be  examined  ;  and  that  a  copy  of  fuch  application 
Ihall  at  the  fame  time,  be  delivered  to  the  Agent  for  the  oppofite  party. 


Re/olvcd,  That  h6  claim  or  complaint  fhall  be  tcnfidered  as  barred  by  the  limita- 
tion of  time  in  the  treaty,  if  a  memorial  containing  the  full  demand  has  been  duly 
prefented  to  the  Board  within  the  time  thereby  prefcribed,  although  fuch  proceed- 
ings at  law  as  may  from  the  ciicumftances  of  the  cafe  be  neceffary  for  the  purpoft  of 
obtaining  evidence  in  fupport  of  the  fame,  or  any  part  thereof,  have  not  been  com- 
pleated  within  the  time  fo  limited  ;  but  that  all  poflible  difpatch  and  diligence  in 
commencing  and  ccmplcaii  ig  fuch  proceedings  will  in  every  cafe  be  cxpefted  by 
the  Board. 

Refohedt 


> 


RefoheJ,  That  till  the  anfwer  to  a  claim  has  been  put  in,  and  laid  before  tlie 
Board,  railing  a  queftion  of  faft  between  the  parties,  no  application  can  in  com- 
mon courfe,  or.  without,  very  fpecialrc.afone,.  be  received,  forjeave  to  examine  wit- 
nefles  againft  fuch  claims.  '  > 


Ordered,  That  all  applications  out  of  the  ordinary  courfe  of  proceeding  before 
the  Board,  fliall  ftate  fpecially  the^rounds  on  which  they  are  made,  and  meant  to 
befupported;  and  when  the  urgency  of  circumHances  render|  it  neccffary  tomake 
any  fuch  application  between  the  fittings  of  the  Board,  that  a  copy  thereof  be 
forthwith  fent  to  ea«h  Commiflioner,  as  well  as  to  the  Agent  for  the  adverfe  party. 


■Ordered.,  That  the  General  Agent  for  claimants,  and  Agent  for  the  United  Stai*;-,, 
refpetiively  furnifti  the  Conuniffioners  with  copies  of  all  papers  laid  before  the  Board, 
whether  averments  for  evidence,  or  other  reprefentations,  or  llatements  contain- 
ing incidental  objeftions,  or  queftions  for  their  confideration. 

.  ■.:■.■  r.\'.'      '    :  ■      -  ':'   .<    '  :  ''.Ac 


Re/ol-ved,  That  the  Board  will  receive  fuch  evidence  only,  to  prove  the  debts  which 
are  the  fubjefts  of  claim  before  them,  as  would  have  been  competent  and  admiffible 
to  prove  the  fame,  immediately  previous  to  the  operation  of  lawful  impediments  in 
the  courts  of  the  States  where  the  debtors  at  that  time  refided ;  unlefs  upon  fpecial 
caufe  firrt  ftiewn,  and  an  order  of  the  Board  for  the  admiflion  of  evidence  of  any 
other  defcription.  ■...,■  .    :  '.  -  .  ,  •• 


Note.  The  foregoing  Refolutions  and  Orders  of  the  Board  are  of  different  dates. 
They  have  been  communicated  as  extenfively  as  was  in  the  General  Agent's  pow- 
er, from  a  knowledge  of,  or  correfpondence  with,  the  few  fpecial  agents  and  at- 
tornies  in  hSt  of  the  claimants  who  had  come  forward  previous  to  the  orders  and 
refolutions.  He  thinks  it  neceffary  now,  to  make  the  information  as  extenfive  as 
is  in  his  power,  and  to  fend  the  above,  with  every  other  material  refolution  or 
order,  to  every  individual  agent  or  attorney  in  faft  for  Britifh  clairnants,  with 
whom  he  has  corre^onded>  or  with  whom  he  has  had  any  communication. 


[       5       3 
f. '.-1.  i(    T   ,.  .  iv.  ?i.  ■      Office  o/ /i>^  Commissioners  unJer  the 

jc  <As  ■^\x\     ..'  A    •  V     5/jr?;t  ^r/fV/r  a/^/**  Trtatj  ef  Amity,  i^e.  with  Grtat-Brifain. 

,.o.;j''    ■'■  '■^^'■■■'-\y'^^^f>^^  -'^'^  '^-'^  ''-'^^.^  Dfcrmitf  i8.   1798, 


'    '.-■  "r\:.'.'  .r  7  .'?••!. i!  :r     ' 


.  .'Vid    C.J    .U.  -    vJi      .K'.d. 


.  (;  ■  .-v    Present, 

Mr.  MACDONALD. 
Mr.  rich. 
Mr.  FITZSIMONS. 
Mr.  SITGREAVES. 
Mr.  GUILLEMARD. 


•  >   :.;       ) 


J  .■ 


;  ( (V  i'\'****'f'    >• 


..,.,v 


I'l  -'it  J !  ii.,    .    )i  .  ,1    :.;,.  ,.1. 


In  tKe  Cafe  pf  Cunningham  &  Cov 


Hi; 


■i/i- 


THE  refolution  moved  by  a  "member  of  the  Board  on  the  twenly-thirdday  of 
Oftobcr  laft,  on  the  queftion  of  interejl  during  the  war,  which,  with  other  genera? 
queftlonsof  interpretation,  was  in  the  anfwer  of  the  United  Staves,  fpecially  raifed 
and  fubmitted,  oii  full  argumeht,  for  the  determination  of  the  Board  in  this  parti- 
cular cafe,  as  inirolving  "  many  important  principles  neceffary  to  be  decided," 
(which  anfwer  it  appears  from  the  letter  annexed  to,  and  printed  therewith,  was 
drawn  up  by  the  Attorney  General  of  the  United  States,  as  a  leading  argument  to 
be  referred  to  in  fimilar  cafes,  and  to  which  reference  lias  accordingly  been  made) 
having  been  again  rtoved,  the  nlattei'  was  this  day  fully  difcufled,  and  the  rcfolutioa 
paffe  J  as  follows : — 

THE  BOARD  Slaving  Cotifidered  the  argument  of  both  parties  on  the  claim  of 
intereft  during  the  war,  which  is  oppofed  on  the  following  general  grounds  and  prin- 
ciples, as  Hated  in  the  anfwer  of  the  United  States,  viz. 

The  rujes  of.  conftruftion  eftabliflied  by  the  law  of  nations  for  the  interpretation 
of '»  obfcUre  or  atnbig\ious  pads :" —  .    ,  .     ,     .,    ^ 

The  meaning  of  the  word  "  deh/s^'  in  ihe  fourth  article  of  the  treaty  of  peace  as 
not  comprehending  intereft,  becaufe  intereft  is  recoverable  at  law  in  the  technical 
form  of  damages,  for  the  detention  of  the  debt ;  "  being  what  is  given  more  than  the 
•«  principal,  that  the  creditor  may  not  be  a  lofer  :"— 

The  inference  to  be  drawn  from  the  demand  of  a  dedoftion  of  intereft  durinc; 
the  war,  which  had  been  made  on  the  part  of  the  United  States  in  the  courfe  of  the 
negociation  previous  to  the  formation  of  the  faid  article,  and  from  a  converfation 
fabfequent  to  the  treaty,  viz,  in  the  year  1786,  between  the  Britifti  fecretary  of 
Hate  for  foreign  affairs,  and  the  American  nlinifter  at  London  ;  in  which  the  latter 
fuggefted  "  the  policy  of  giving  up  the  intereft  during  the  war,  and  of  agreeing  to 
"  a  plan  of  payment  by  inftalments ;"  and  the  former,  after  "  feme  lllght  ex- 
"  preffions  concerning  the  intereft,  wiftied  that  the  courts  were  opened  for  recover- 
"  ing  the  principal,"  and  obferved  "  that  the  intereft  might  be  left  for  an  after 
•'  confideration :" — 


I 


:->«.^' 


C      6      ] 

The  nature  anJ  caufes  of  the  war;  in  the  courfc  of  which  ••  the  produAs  of  the 
"  Uiiul  wire  indifpenfably  neoeffary  lor  defence>  Kgsiinft  that  which,  on  the  fide  of 
"  the  AmericAns,  was  a  war  for  life,  liberty  anS  property:  A  war  pro  aris  et 
"  focis ;"  attended  with  circumftanccs  of  fuch  dcfolatlon  (as  defcribed  in  the  print- 
ed anfwer)  that-after  the  application  of  what  wa-:  thus  ncceffary  for  defence,  •'  there 
"  was  nothing  left  to  an  individual  for  paying  intereil  on  his  debt  :"— 

«'  The  interdiftion  of  commerce  to  the  United  States  by  the  Briti(h  Parliament,** 
and  ftoppage  of  "  intercourfe  and  apccfs  between  the  Amcricati  debtors  and  Britidj 
••  creditors,"  by  which  "  the  detention  of  the  debt  during  the  war  was  unavoid- 

"  able:"-  ,.   .  ,,-::;?    r, 

The  departure  of  creditors,  and  their  fafters,  from  the  State,  fo  that  no  pcrfon 
remained  in  the  country  to  receive  payment  of  the  debt : — 

The  analogy  between  the  prefent  cafe,  and  that  quoted  from  Viner's  abridgment, 
in  which  it  is  (lated,  "  that  where  by  a  general  and  national  calamity,  nothing  is 
"  made  out  of  lands  which  arc  affigned  for  the  payment  of  intereft,  it  ought  not 
*•  to  run  on  during  the  time , of  fuch  calamity  :" — 

The  authority  of  writers  on  the  law  of  nations,  who  fupport  the  general  pofition, 
(which  as  fuch  has  beer>  ftated,  and  not  difputcd  on  the  part  of  the  United  States) 
viz  •«  that  debts  due  to  private  pctfons  before  a  war,  mall  be  paid  after  the  war  ; 
and  with  intcrcft  during  the  war,  if  fuch  was  the  contrail,  either  tacit  or  ex- 
prefs :" — But  who  alfo  lay  it  down,  that  "  if  nothing  elfe  be  agreed  upon,  yet 
this  ii  to  b2  fuppofcJ  in  every  p?ace,  that  no  aflion  fliall  be  commenced  for  da- 
mages done  in  war,  which  is  alfo  to  be  underftood  of  tbofe  done  to  private  perfons  r 
thcie  being  alfo  the  effef^s  of  war  :" — 

The  equity,  as  between  creditor  and  debtor,  of  denying  intcred  daring  the  war, 
ivhereby  "  the  creditor  and  debtor  will  be  put  upon  a  more  equal  footing;  and  a 
"  lofs  will  not  be  incurred  by  the  debtor,  for  the  fake  of  a  gain  to  the  creditor  :" — 

The  evidence  of  fuch  equity,  arifing  from  "  the  prafticc  of  the  courts  and  juries 
"  in  difallowing  intereii  during  the  war,  generally,  throughout  the  United  States  ;" 
fuch  being  ftated  to  have  been,  and  to  be  "  the  pradice  of  the  courts"  (and  of  jurie? 
"  in  all  cafes  that  were  "  under  the  power  of  their  verdifts")  of  Neiu-fori,  Ntrx'- 
"  "Jerfiy,  Pennfylijanta,  Dilatuare,  Maryland,  Virginia,  and  South-Carolina;  in 
"  iome  of  which  States  the  claims  (it  is  faid)  of  Britifh  debts  were  fo  inconfiderable, 
••^  and  fo  few,  as  not  to  have  occafioned  public  concern,,  or  to  have  excited  any 
"  prejudices :" — 

The  evidence  of  fuch  equity,  in  particular,  arifing  from  the  judgment  and  opi- 
nions delivered  by  the  judges  of  one  of  the  State  courts  of  Virginia  againll  the  allow- 
ance of  fuch  intereft,  in  the  cafe  of  M'Call  againjl  Tumtr,  decided  in  1796  ; 
On  which  occafion  it  was  ftated  from  the  bench  (as  appears  from  the  report  of 
tie  cafe  in  the  appendix  to  the  anfwer)  that  on  comparing  "  the  condoft  of  the 
••  two  nations"  daring  the  war,  "  the  comparifon  was  evidently  in  favour  of  Ame- 
"  rica  ;"  that  of  Great  Britain  amounting  to  fo  many  deflections  from  the  modern 
"  rules  of  warfare,  which  did  not  entitle  the  creditors  even  to  the  principal  debts 
"  themfelves,  had  they  not  been  ftipulated  for  by  the  treaty  of  peace;"  a  ftipula- 
tion  which  ••  although  it  was  unjuft  and  inconvenient  in  one  refpcft,  yet  as  the 

"  other 


-.a 


•[       7       J 


"  other  pftru  weie  eilcenicd  beneficial,  it  was  righc  to  accept,  An  the  lake  of  the 

"  general  advantage)  ic  contained  ;"— 

And  the  further  evidence  of  iuch  equity  arifins  from  the  ge..c-al  irnprelHon  ia 
Amvica  durirvg  the  war,  that  "  in  a  cnnteft  (m  that  k,ind,  if  fuccdsful>"  lew 
would  be  "  re(|'iired  at  a  future  day  topay  fuchiijtereft.Vi/.ii     i.     j.a    .•.„,.... 

Rt/ohtJ,  That  the  defcriptton  contained  in  the  fourth  article  of  the  treaty  of 
peace,  of  the  nature  and  extent  of  the  right  and  property  ihereby  fecured  agaiiill 
the  operation  of  lawful  impediments,  vlt.  "  x\it  full  valut  in  (lerling  money  of  all 
"  bona  fide  oV^//,  theretofore  contracted,"  is  a  deicription  in  terms  which  arc  clear 
and  explicit ;  and  therefore,  the  authorities  which  have  been  referred  to  on  the  con 
Arut^ion  of  "  obfcurc  or  ambiguous  pads,"  bear  no  application  to  the  prefent  quef- 
tion  :•— That  the  full  'ualiie  of  a  bona  fide  debt  mad  mean  the  full  amount  of  thi  ohli- 
gallon,  with  all  its  incidentr,,  according  to  the  contrad  : — That  interelt  has  been 
rightly  defined  on  the  part  of  the  United  States,  to  be  a  fixed  and  fettled  compen- 
fation  for  the  damages  fuftained  by  the  creditor  through  the  detention  or  delay  of 
payment  of  the  original  debt,  "  '.hat  he  may  not  be  a  lofer  }"  and  in  law  as  well 
as  in  equity,  fuch  compenfatiua  is  conflJered  as  a  growing  increafe  of  the  debt  it- 
felf;  the  form,  in  certain  cafes  of  tecovcring  or  awarding  fuch  increafe  ai dtbt  in 
courts  of  law,  by  the  name  oi  Jamagts,  leading  to  no  fubllantial  difliu£lion,  incon- 
fitlent  with  the  known  and  long  eilablilhed  nature  of  tlie  riglit,  and  that  common  ac- 
ceptation of  language  by  which  alone  the  treaty  muH  be  conllrued  : — For  the  firgu- 
ment  which  has  been  laid  before  the  Board,  from  the  letter  of  Mr.  Jeffirfcn  to  Mr. 
Hammond,  previous  to  the  treaty  of  amity,  referred  to  in  the  anfwer  to  the  claim, 
is  an  elaborate  mil'application  of  authorities  on  the  technical  diAindlions  ami 
reflri(flive  language  of  form  in  courts  of  law,  which  the  framers  pf  the.  treaty 
cannot  be  prefumed  to  have  known,  and  never  meant  to  apply  :— That  i^".  ffpm  t{>c 
denomination  of  damages,  as  applied  to  intereA  in  courts  of  law,  the  cpnclufion 
could  be  drawn,  that  inttrtft  •was  not  dtbt,  and  therefore  not  ivuhin  tt^  meaning  rf 
the  treaty  fuch  conclufion  would  afFefl  the  claim  of  intereft  in  time  of  peace,  as 
well  as  daring  the  war,  and  therefore  reach  too  far  for  the  argument,  which  admits 
that  interefl  accruing  ia  time  of  peace  is  due  according  to  the  contra^  : — That  if 
any  reafonable  ground  of  doubt  remained,  it  would  be  removed  by  certain  fa£ls,  as 
ftated  on  the  part  of  the  United  States,  and  from  which  a  contrary  infei^ence  has 
been  drawn,  viz.  the  demand,  vn  the  courfe  of  the  negociation  previeas  tp  the 
treaty,  of  a  deduction  of  interell  during  the  war;  the  filenceof  the  article  on  that 
head  ;  ttte  fubfequent  fuggeflion  by  the  Anierican  mitvifter  in  the  year  1786,  of"  tJie 
•'  policy  of  giving  up"  fpch  interell,  thereby  admitting,  as  matter  of  necelT^y  im- 
plication, that  the  paynicnl  of  the  interell  to  be  thns  •'  given  up,"  had. been  pne- 
vioufly  flipulated  and  fecured  ;  and  the  anfwer  made  by  the  firitifh  Secretary  cf 
State  to  the  fuggeflion  of  thus  "  giving  up"  the  faid  intereft  on  principles  of  policy,, 
viz.  "  that  it  might  be  left  for  an  after  confideration  ;"  with  the  faCl  tb?t  it  never 
was  on  after  confideration  given  up,  but  on  the  contrary,  by  the  flxth  article  of  the 
treaty  of  amity,  which  adopts  the  fame  general  term  "  debit,"  as  defcrlptive  of  the 
iubje£l  matter  thereof,  "  the  commiilioners  are  empowered  and  required,  in  pur- 
"  fuance  of  the  true  intent  and  meaning  of  the  faid  article,  to  take  into  their  confi- 
"  deration  all  claims,  ivhether  of  principal  ar  interefi,  or  balances  of  principal  and. 
"  intereft"  (without  any  alluAon  whatever  to  a  diftindlion  between  the  cafe  of  in- 
tereft during  the  war,  and  intereft  in  time  of  peace)  "  and  to  determine  the  fame 
"  refpeftively,  according  to  the  merits  of  the  feveral  cafes  \  due  regard  being  had  to 
♦'  all  the  circumjianus  thereof,  and  as  equity  and  joiftice  Ihall  appear  to  them  to 

"  require  •." — 


■p 


1,1 


[   «   1 

*'  require  :''— That  the  Board  are  thus  empowered  by  the  treaty  of  amity  to  award 
interell  during  the  war;  but  it  is  rightly  maintained  on  the  part  of  the  United 
States,  that  no  award  can  be  made  under  the  treaty  of  amity,  which  is  not  founded 

«n  a  rif  ht  fccured  by  the  treaty  of  peace  ;  therefore,  an  award  of  intereft  during 
the  war  will  be  founded  on^  right  fecorcd  by  the  treaty  of  peace  :^From  all  which 
it  follows,  not  only  that  th:  general  term  "  Jeits"  in  the  fourth  artick  of  the 
treaty  of  peace,  comprehends  the  ivbole  intcrcrt,  as  well  as  thi  nvAo/e  principal ; 
and  that  the  Board  arc,  by  the  treaty  of  amity,  required  to  take  the  fame  into 
their  confideration ;  but  alfo,  that  they  are  bound  to  decide  '<  according  to  the 
"  merits  and  circumdances  of  the /e-veral  rrt/e/,"  upon  fuch  principles  as  (with  re- 

■fv.Tence  to  the  faid  merits  and  circuniftances  of  each  particular  cafe)  fliall  appear  to 
them  to  be  jull  and  equitable  : — No^'is  any  diflinftion  to  be  found  in  any  of  the  treii- 
lies  between  that  part  of  the  claim  which  is  compofcd  of  intereft  and  that  whicli  is 
fompcfcd  of  principal,  the  Board  having  no  greater  power  of  decifion  over  the  one 
than  ofer  the  other  : — That  it  is  not  alleugcd,  nor  does  it  appear,  that  any  fpeciai  bar 
or  ground  of  objeftion  againft  interelt  during  the  war,  arifes  out  of  the  nature  nr  terms 
of  the  contratts,  or  otner  particular  merits  or  circumftances  of  this  cafe  ;  neither  is 
there  any  general  ground  on  which  the  cafe  can  be  confidered  as  forming  an  exception 
to  the  pofition  arifing  out  of  the  law  of  nations  and  before  recited  (as  ftated  and  re- 

'♦trred  to  6n  the  part  of  the  United  States)  viz.  "  that  debts  due  to  private  perfons 
"before  a  war,  Ihall  be  paid  after  the  war ;  and  with  intereft  during  the  w{.r,  if 
"  fuch  was  the  contraft  (ither  tadt  or  exprefs."  For  every  inference  which  can  be 
drawn  from  the  particular  nature  of  the  war,  as  diftinft  from  that  "  of  ordinary 
"  wars  between  independent  nations,"  is  in  favour  of  the  original  contract  between 
the  parties,  and  gives  ftrength  and  application,  a  fortiori,  to  the  found  policy  of 
juftice,  which  preierves,  unimpaired  by  national  hoftility,  the  full  eifefl,  and  inte- 
grity of  good  faith  in  private  tranfa£lion  : — But  on  this  head,  the  fentiments  of  the 
Board  carmot  be  better  exprefled  than  in  the  words  of  a  learned  Judge  (Patterfon) 
who]  in  delivering  his  opinion  in  the  Suprerte  Court  of  the  United  States  on  the 
7th  day  of  February,  1796,  in  the  cafe  of  Jones  v,  Hylton,  expreflbd  himfelf  at 
follows: — "  I  feel  no  hefjiation  in  declaring,  that  it  has  always  appeared  to  me  to 
"be  incompatible  with  the  principles  of  juftice  and  policy,  that  contracts  entered 
"  into  by  individuals  of  different  nations  ftiould  be  violated  by  their  refpeflive  go- 
"  vernments,  in  confequence  of  national  quarrels  and  hoftilities — 'National  differences 
♦'  Jhould  not  affeSi  private  bargains.     The  confidence,  both  of  an  individual  and  na- 

'"*•' tional  nature,  on  which  the  contrails  were  founded,  ought  to  be  preferved  invio- 

■"  late.  Is  not  this  the  language  of  honefty  and  honor  ?  Does  not  the  fcntiment  cdr- 
-*•  rcfppnd  with  the  fentiments  of  juftice  and  the  dilates  of  the  moral  fenfe  ?  Infliort, 
*'  is  it  not  the-refult  of  rieht  reafoh  and  natural  equity?  The  relation  which  the 
*'  parties  ftood  in  to  each  other  at  the  time  of  contracting  thefe  debts,  ought  not  to 
♦'  pafs  without  notice.  The  debts  were  contracted  when  the  creditors  and  debtors 
•*  were  fubjefts  of  the  fame  King,  and  children  of  the  fame  family.  They  were 
"  made  under  the  fanftion  of  laws  common  to,  and  binding  on  both.  A  revalu- 
'•'  tionary  nvar  could  not  like  other  luars  be  fbrefeen  or  calculated  upon  : — The  thing 

'■**  was  improbable : — No  one  at  the  time  the  debts  were  contrafted  had  any  idea 
'*  of  a-  feverance  or  difmembtrment  of  the  empire,  by  which  perfons  who  h«td 
*'  been  united  under  one  fyftem  of  civil  polity  ftiould  be  torn  afunder,  and  become 

■  •'  enemies  for  a  time,  and  perhaps  aliens  forever.  Contracts  entered  into  in  fuch 
«*  a  ftate  of  things  ought  to  be  facredly  regarded  : — Inviolability  feems  to  be  at- 
"■  tached  to  them:" — "  The  conftrudtion  of  a  treaty  made  in  favour  of  fuch  cre- 
"  ditors,  and  for  the  reftoration  and  enforcement  of  prc-exifting  contrails,  ought 
*'  -to  be  liberal  and  benign  : — For  thefe  reafons  this  claufc  in  the  treaty  deftrves  the 

"  utmoft 


[ 


J 


■"  utmtfl  latiittJe  tf  ex/ioJitioH  :^'-^'T\i*.t  independent  of  the  iirclcvancy  dt'  tlic  fafl, 
\n  a  quefti&a  of  private  right  fccured  to  creditors  by  treaty  and  the  law  of  nations, 
^he  prevention  of  rcmittan''es  to  Great  Britain,  and  "  detention  of  debts  during  the 
"  w«r,"  ought  not  to  have  been  afcribcd  to  the  "  interdiction  of  commerce  to  the 
*'  United  Statej  by  the  Britilh  Parliament  ;*'—For  by  virtue  of  a  itfolution  of  Con- 
^refi,  which  toolc  place  on  the  loth  day  of  September,  177;,  and  \vh;ch  was  ilated 
and  recognized  by  the  Supri.x  Court  of  Pennfylvania  in  deciding  the  cafe  of 
Heart  againjl  Allin,  the  exportation  of  all  merchandize  and  commoditirs  whatfoever 
to  Great  Britain,  Ireland,  or  the  Weil  Indies,  wai  prohibited  ;  the  faid  refolu- 
^lon  rendering  it  afterwards  (as  laid  down  by  the  court  in  that  cafe)  *'  unlawful 
*'  to  make  remittances  to  Great  Britain:"  And  on  the  zoth  day  of  Oflober, 
1777,  an  a£t  of  Aflembly  was  pafled  by  the  State  of  Virginia,  r/hereby  authcrrity 
was  given,  and  an  invitation  held  forth  to  the  aebtors  of  Britifli  creditors,  to  pay 
their  debts  into  the  Loan  Office  of  the  State  ;  (and  fuch  payments  were  afterwards 
accordingly  mado  in  depreciated  paper  money,  at  the  nominal  value,  to  a  great 
amount;)  the  preamble  of  which  aft  of  Aflembly  dates  a  motive  for  the  law  in 
the  following  terms  ;  "  But  the  fafety  of  the  United  States  demands,  and  tiie  law 
"  and  ufages  of  nations  will  juftify,  that  <wi  Jhould  not  Jlretigthtn  the  hands  ofotn 
"  tutmiet  during  the  continuance  of  the  prefent  war,  by  remitting  to  them  the 
"  profits  or  nroceeds  of  fuch  edates,  or  the  inttrtft  or  princifal  of  fuch  debts  :'* 
Nor  can  it  be  received  as  a  better  realbn  for  withholding  intcreft  on  juft  debts, 
that  ••  creditors  and  their  faftors  left  Virginia  and  carried  away  their  books  and 
«'  vouchers,,  and  were  inaccefiible  to  the  debtors  till  the  return  of  peace  :—'«  For 
the  proclamation  by  the  governor  of  Virginia,  dated  the  3d  day  of  June,  1776, 
which,  with  the  charges  and  accufations  it  contains,  as  ifl'ucd  in  the  heat  of  war, 
has  been  printed  at  full  length  in  the  appendix  to  the  anfwer  "  lltiflly  requires  and 
•'  injoins  all  the  natives  of  Great  Mritain  tvho  nvere  partners  r.vith,  J'ttLfors,  agent s, 
•'  .fiorekeepers ,  ajjiftant  fiorekiiptrs ,  or  clerks  here,  for  an^  merchant  or  merchants  in 
"  ■Great  Britain,  on  the  fir  ft  day  of  "January,  \'J'j(>,  to  depart  this  Commonixjcahh 
"  ix'ith  their  goods  within  forty  days  from  the  date  hereof,  except  fuch  of  the  faid 
"  natives  as  have  heretofore  uniformly  manifefted  a  friendly  difpofition  to  the 
"  American  caufe,  or  are  attached  to  this  country  by  having  wives  or  children 
'♦  here,  agreeable  to  a  refolution  of  the  General  Aflembly  in  that  cafe  msde ;"  in 
confequence  of  which  proclamation  many  perfons  of  the  defcription  therein  men- 
tioned did  of  courfe  depart : — That  as  all  coercive  meafures  for  recovering  payment 
of  Britifli  debts  were  of  courfe  fufpended  during  the  war,  fo  voluntary  payments 
were  thus  prevented  by  laws  or  public  a£ls  of  the  State,  prohibiting  remittances  to 
Britifli  creditors  who  were  not  within  the  State,  and  compelling  thofe  who  were 
within  the  State  to  depart : — And  it  cannot  be  juil,  that  laws  ftiould  firft  be  pafled, 
making  remittances  unlawful,  and  driving  creditors  and  their  agents  from  the 
State  ;  and  then  intc-eft  withheld,  becaufe  remittances  were  unlawful,  and  creditor . 
and  their  aigents  abfent : — That  if  it  could  be  maintained,  that  laws  which  were 
avowedly  made  to  detain  the  money  in  the  country,  for  the  double  purpofc  of  weak- 
ening the  enemy  by  withholding  their  property  during  the  war,  and  ot  fecunng  the 
ufe  of  it  for  the  public  fervice,  had  the  elFeft  to  deprive  the  creditor  of  his  right  to 
demand  payment  of  interefl  as  well  as  principal  on  the  return  of  peace,  fuch  Ir.ws, 
fo  operating  againft  the  recovery  of  the  full  value  of  bona  fiJj  debts,  would  of 
courfe  come  within  thie  defcription  of  lawful  impediments,  entitling  the  creditor, 
under  the  treaty  of  amity,  to  compenfation  for  the  lofs  thereby  fuflained ; — Bin 
from  the  fafts  which  have  bf  sn  fet  forth  on  the  part  of  the  United  States,  tlicre  is 
at  leafl  no  room  for  any  general  prefumption,  that  if  the  courfe  of  rrmittarrce  had 
been  free,  remittance  would  have  been  made  ;  or  if  Britifli  cred'.ccrs  and  faftors 

C  had 


*.«,**l>-~-* 


^h 


[       lO      1 

had  remained  in  the  State,  payments  would  hav«  been  received  : — Foritisftated 
in  the  jinAvcr,  that  "  all  the  produdb  of  the  land  were  indifpenfabiy  n^ceffary 
"  for  tleJcuce,  and  nothing  was  left  to  an  individual  for  paying  intcr«ft  on  his 
"  debt  i"  iVom  whicii  it  alio  follows,  that  nothing  can  be  more  retAotii-  from  ftU  re- 
fcmblnnce  to  the  prcfcnt  cafe,  than  that  extender  and  rtfujkl  ix  law,  to  Which  it  has 
been  afiitnilatcd  in  the  letter  from  Mr.  "Jcfferjon  before- mentioned  ;  the  very  eAentfc 
of  tender  and  refufal  confiftiiig  in  the  adual  offer  of  the  mone^,  and  its  b^ing 
ol'njays  ready  to  l)e  paid  : — ^That  as  the  means  which  might  otherwifc  have  been  ap- 
plied towards  payment  of  BritiOi  debts,  ivere  thus  expended  in  fapport  of  the  war 
with  Great  Britain,  it  is  of  no  importance  to  the  conclufion,  whether  that  war  was 
"  on  the  fuic  of  America"  maintaijied  under  ihe  circumAance:  which  have  beCrt 
dcfcfibetl,  ilnd  merely  "for  defenct"  again  ft  hoftile  aggreffion  ;  or  for  the  attaiiiP 
ment  of  great  and  valuable  public  objeds :— For  Britilh  creditors  were  indivi- 
dually on  the  return  of  peace  as  little  refpcaifible  in  theoiiccaife,  as  entitled  to 
or  pofleflcd  of  any  participation  of  benefit  from  the  event  .n  the  other :— That 
all  arguments  againll  the  juft  rights  of  individuals  derived  from  th.;  nature 
and  caufes  of  the  war,  or  reflexions  on  the  manner  in  which  it  was  condu£led  on 
the  one  fide  or  on  the  other,  are  befides,  as  inconfifient  with  the  elbiblifhed  prin- 
ciples of  the  law  of  nations,  as  repugnant  to  the  fpirit  of  that  difcuflion  which 
ought  to  take  place  in  the  execution  of  a  treaty  of  amity  •.—^ArA  fo  far  only  will  the 
Board  animadvert  on  the  publication  of  charges  againfl  Great  Britain  refpefting 
the  nature  and  condu^  of  the  war.  as  dated  in  the  printed  anfwer  in  this  cafe,  and 
documents  thereto  annexed,  in  terms  of  detcription  whiiK  little  accord  with  the 
bufinefs  of  conciliation  and  peace:— •That  the  general  pofition  in  favour  of  debts 
due  to  private  perfons  before  a  war,  as  being  recoverable  on  the  return  of  peace> 
with  intereft  according  to  the  contract,  ha^  been  fiated  and  admitted  on, the  part  of 
the  United  States  ;  and  in  addition  thereto  the  following  paiTagc  has  been  quoted 
Ircm  Vattel,  viz.  "  if  nothing  elfe  he  agreed  vpoa,  yet  this  is  to  be  ftippofed,  that 
"  no  aftion  (liall  be  commenced  for  damages  done  in  war,  which  alfo  is  to  be  un- 
"  derflood  of  thofc  done  to  private  perfons,  ihefe  being  alfo  the  cffiiiSs  of  war  :" — 
But  if  this  latter  pofition  had  reference  as  has  been  argued,  to  the  cafe  of  interell, 
it  would  be  direftly  inconfiftent  with  the  former;  befides  being  precluded,  in  its 
application  to  the  prefentcafe,  by  the  condition  it  contains;  for  here  there  is  an  ex- 
prcfi  agreement  by  treaty  to  the  contrary ;  and  as  damage  done  in  war  to  the  pro- 
perty or  efFeiti  of  individuals  is  not  the  fubjeft  of  an  aSion  on  the  return  of  peace, 
^b  it  cannot  in  jufticc  be  the  ground  of  objeftion  or  defence  againft  an  aftion  for 
.ccovery  on  an  antecedent  right : — That  the  cafe  which  has  been  put  and  relied  on, 
M  l^ated  in  t!ie  faii  letter  from  Mr.  Jefferfm,  of  intcreft  feperatcly  feeured  by  an 
irJJigKincnt  cf  land^,  of"  a  general  and  national  calamity"  by  which  "  nothing  is 
*'  made  cut  of  the  Lvids"  fo  afEgned,  and  of  tlie  ftoppageof  the  currency  of  fuch 
iutcrcil  during  fach  calamity,  bears  no  analogy  whatever  to  the  prfefcnt  cale:— For, 
without  enquiring  how  far  the  nature  of  "  the  general  andnational  calamity"  con- 
fe^iplatcd  in  the  cafe  referred  to,  fupports  the  com  pari  fon ;  o/ refiing  upon  the  faft, 
ihstia  this  cafe  payment  wjs  not  withheld  from  a  failure  of  means,  but  from  the 
.".ppUcation  of  th  }fe  means  on  the  part  of  the  debtor  to  other  purpofcs,  it  is  infficient 
ih.u  here  there  is  no  fuch  aflignment  of  lands,  or  fpecific  appropriation  anJ  accept- 
ance of  a  particular  fecurity  or  fund  of  payment;  but  a  fimple,  abfolute,  and  un- 
qualified obligation  by  the  debtor,  that  the  debt,  principal  and  interelt.  Without 
dillindlion,  fhall  be  paid,  which  nothing  Ihort  of  performance  or  the  credirors  vo- 
iu'.uary  acquittance  can  either  abridge  or  releafe  : — That  the  true  nature  o\  intcreft 
cannot  be  better  defcribcd  than  in  the  words  of  Mr.  fufiict  Shippen  in  the  cafe  of 
Petit  againji  Wallls,  as  follows,  viz.  "  In  fliort,  the  jf. 5,000  paid  with   interett 

at 


% 


[    n    3 

"  at  tbii  day  is  not,  in  fidot  liw,  more  than   (be £.^,<soo  pai^  tvi'tloot  (rvicrcff 
"  at  ih«  day  it  becomes  due  :"<r^Tbac  no  awsrd  oi  intexcft  during  the  war,  woutd 
not  (as  haa  bten  oiigedi)  create!  "  ftIfif»to!tb«  debtor  fisw  th«  iake  oS  a  gain  u>  the 
"  creditor ;"  fix  according  to  the  c«>iDpeadioos  delcripiion  Qf  the  natuce  of  inte- 
rcik  which  hat  juft  been  referred  tu,  %nd>  the  de&nition  alpeady  A.ited»  as  tnaintained 
with  m\id^  argument,  and  on.  many  autitorities,  on  the  (>art  ot  the  United  States^ 
intereft  is  not  gain,  but  coo»pe«iation  to  prevent  Ms  ;  fo  that  the  denial  of  iatereft 
wotild  be  gain  to  the  debtor,  and  lois  to  the  creditor  ;  with  aa  increafe  in  propor- 
tion to  the  additional  value  ofaioney  during  ';he  war:— That  therefore  if  the  Board 
were  ta,'deparc  from. their 4uty,  in  the  impra£licable  attempt  fuggefted  in  the  anfwer,  of 
placing  debtor  and  creditor  "  upon  an  equal feettng,"  by  eilinuting  conjedkural  loiTes 
and  balanctag  inequalities  in  their  refpedivefituatiamSfadvanuges,  or  fnfierings,  du- 
ring the  war,  the  fettled  rate  of  intereft  ought  be  found  ki  many  inliances  to  fall  ver/ 
far  i^ort  of  the  loiTes,  immediate  or  remote,  fuAained  by  the  creditor  through  the  de- 
tention of  his  debt,  at  a  time  when  payment  was  moft  wanted ,  while  the  gain  of  the 
debtor,  in  the  application  or  ul'e  of  the  money  or  property  fo  withheld,  might  far  exceed 
the  amount  of  iiuereft  for  which  he  was  liable  : — ^That  as  many  individual  inhabitants 
of  the  Unucd  States  were;  doubtlefs,  reducfi  to  aftatcof  infolvency  jy  the  war,  fo  it 
is  matter  of  equal  notoriety,  that  many  Britiftj  merchants,  and  other  fubjefts  of  his 
Britannic  Majelty,  were  driven  to  bankruptcy  and  ruin  through  the  lols  of  trade, 
non  payment  of  debt,  and  other  circumftances  arifing  from  the  fame  common  ca- 
lamity ;  but  it  does  not  appear,  nor  has  it  bcca  alledged,  that  any  fuch  claim  of 
exemption  from  intereft  during  the  war  has  cv.r  on  that  account  been  attempted  or 
fet  up,  or  could  be  maintained  in  any  of  his  (aid  Majelly's  donunions  by  any  fuch 
Britilh  debtor,  however  unfortunate,  or  however  clearly  his  lofies  might  be  dedu- 
ced from  the  fame  caufe  y/Mch  bat  |3£fij>  heid  a  fufEcIenr  grou.'vd  for  fuch  exemp- 
tion in  favour  of  American  debtors;    fo  that  /^^  principle  applied  by  the  learned 
Judge,  and  on  the  occafion  firfl:  above-mentioned,  to  the  cafe  of  6riti(h  creditors 
whofe  debts  had  been  paid  into  the  State  treafury,  is  equally   applicable  to  the 
prefent  queftion,  and  was  ftated  by  the  fatd  learned  Judge  in  the  fdlowing  terms, 
"  The  conftrudion  on  tlie  part  of  the  defendants  cxcUida  mutuality ,     The  debts  due 
"  from  Diitifh  fubjedls  to  American  citizens  were  not  confifcated  or  fcqueftered,  or 
"  drawn  into  the  public  coffers.      They  were  left  untouched.      Now  if  all  the 
"  Britidi  debtors  be  compelled  to  pay  their  American  creditors,  and  a  partenljr 
*•  of  the  American  debtors  be  compelled  to  pay  th^ir  Britilh  creditors,  there  will 
"   not  be   that  mutuality   in  the  thing  which  its  nature  and  juftice  requires.     The 
"  rule  in  fuch  cafe  (hojld  work  both  ways;  whereas  the  other  conftruftion  creates 
•'  mutuality  and  proceeds  upon   indifcriminaiing  principles.     The  former  conllruc- 
"  tion  does  violence  to  the  letter  and  fpirit  of  the  inftrument ;  the  latter  flows 
•'  eafily  and  natur.ally  out  of  it :" — And  fo  it  may  be  Giid,  tl-at  if  debtors  in  Great 
Britain  to  American  creditor*  may  be  CPiapeiled  Oo  pay  {heir/^  cjebts,  intereft  as 
v.c!l  as  principal,  and  debtors  in  America  to  Britilh  creditors  can  only  be  com- 
pelled to  pay  a  part  of  their  debts,  viz.  principal  and  part  of  the  intereft,  ^lie 
conftruftion    "excludes  mutuality"    in  the  execution  of  the   article,    and  "does 
"  violence  to  the  letter  and  fpirit  of  the  inftrument:" — That  the  alledged  equity  of 
lie.  .iig  intereft  during  the  war,  derives  no  fupport  from  th     expeftation  wlich  it 
1?  faid  prevailed  during  the  war  on  the  part  of  debtors  in  America,  that   "  if  the 
*'  event  proved  fuccefil'ul"  they  would  be  thereby  fo  far  relieved  from  the  payment 
<-  f  their  debts ;  for  the  fame  exjpeftation  may  have  prevailed  to  the  full  exteat  of  the 
'■Mhok  debt  due  to  fubjefts  ef  Grr^  Britain,  principal  as  well  as  intereft :r— Nor  can 
any  fuch  equity  be  fupported  on  the  verdiQs  and  decifions  of  courts  .ngainft  fuch 
.   ,,    .  intereft"; 


I 

'1 


[      tz     ] 

intereft ;  whether  they  have  been  given  in  thofe  particular  States  in  which  it  is 
alledged  "  the  claims  of  Britiih  debt^  were  fo  inconsiderable  and  fo  few  as  not  to 
••  have  occafioned  public  concern,  or  to  have  excited  any  prejudices  ;"  or  in  States 
where  the  claims  of  Britifli  debts  were  fo  confiderable  and  fo  many  as  to  occaiion 
"  public  concsrn"  and  "  excite  prejudices :"— For  fuch  verdiAs  and  decifions 
againft  any  part  of  the  ftipalated  or  fettled  intereft  of  juft  debts,  are  themfelves  the 
fubje£l  of  complaint  before  this  Board,  as  lawful  impediments  to  the  full  recovery 
of  fuch  debts ;  on  the  exigence  and  juAice  of  which  the  Board  are  bound  and  autho- 
rized exclufively  to  decide :— That  therefore  no  fufficient  caufe  has  been  (hewn, 
why  in  awarding  full  and  adequate compenfation  for  fuch  debts  as  may'  be  proved, 
within  the  intent  and  meaning  of  the  treaties^  fuU  intereft  (hould  tiot  be  awarded 
for  the  detention  and  delay  of  payment  during  the  war,  as  weU  as  in  time  of  peace  ; 
but  on  the  contrary,  for  the  above  reafons,  and  others  which  might  be  dated,  it 
is  juft  that  fuch  intereft  fliould  be  awarded,  according  to  the  nature  and  import, 
exprefs  or  implied,  of  the  feveral  contrails  on  which  the  claim  is  founded. 

Mr.  SiTGREAVES  dtflented  from  the  above  refolution.  ..'sr,  .. 

Mr.  FiTzsiMONs  alfo  diffented.  .r    .. ..    •,         ■>,.    ':■..      '    ••; 


PHILADELPHIA,  December  19.  1798. 

In  the  Cafe  of  Cunningham  &  Co. 

Mr.  SiTGREAVES  dcfired  to  enter  his  difTent  from  the  refolution  in  this  cafe 
paired  at  the  laft  meeting,  for  reafons,  ftated  in  a  minute  which  he  prefented  and 
read  before  the  Board. 

Mr.  FiTzsiMONs  ftated  th^iit  he  would  prepare  a  minute  containing  his  reafon* 
(^ainft  next  meeting. 


PHILADELPHIA,  December  21,  1798. 

In  the  Cafe  of  Cvinningham  &  Co. 

The  minute  of  diffent  of  Mr.  Sitgreaves  read  at  the  laft  meeting  is  in  the 
following  terms,    viz. 


1 

s 


i  rf 


T  HAVE  defired  to  enter  my  diffent  to  this  refolution,  not  becaufe  I  differ  from  «// 
the  principles  and  inferences  contained  in  it,  but  becaufe  there  are  mgny  in  which 
I  cannot  concur. 

I  diffent 


.-"        'i 


[     13     ] 

I  diflfeot  alio,  becaufe  it  does  not  fpeclHcally  apply  to  the  caii;  in  which  it  pur 

f>ort«  to  be  refolved : — Becaufe  it  attempts  to  eftabliih  a  general  conclufion  on  a 
iibjedl,  on  which  no  general  or  uHfuerfal  frotojttioti  can  be  accurate  or  corrcfl  :— 
And  becaufe  it  precedes  the  proof  of  the  faas,  without  the  knowledge  of  which  it 
cannot  be  determined  that  any  particular  qx  /fecial  rule,  in  this  cafe,  would  be 
Juft  or  equitable. 

I  will  proceed  to  explain,  in  detail,  but  with  as  little  prolixity  as  poflible,  theic 
different  grounds  of  difTent. 

I  ft.  I  agre;  explicitly  that  the  Board,  by  the  fixth  article  of  the  treaty  of  ami- 
ty, are  authori2;ed  to  confider  and  determine  all  claims  "  whether  of  principal  or 
*'  inttrcji ;"  and  that  therefore  there  is  po  fufficicnt  reafon,  derived  from  any  tech- 
nical interpretatioa  of  the  word  "  debts"  in  the  treaty  qf  peace  to  exclude  the 
confideration  of  demands  of  intereft  during  the  luar,  or  for  any  other  period  :—  Or 
to  prevent  the  award  of  intereft,  in  any  cale,  wLere  it  may  be  decined  juft  and 
equitable  that  it  fhould  be  paid.     .  •„ ;,  \^,\,  ..,, ,. ",:  i„  ..,.  - ,  ,, ,,  > 

But  on  the  other  hand,  it  is  equally  clear  to  my  judgment,  that  the  fame  word 
•'  debts,"  does  not  Bt;ceffarily  include  intereft,  either  during  the  war,  or  for  any 
other  period  :-~That  this  obfervation  is  alfo  true  of  the  words  "  full  value"  in  the 
treaty  of  peace,  which  by  found  conftruAion  ought  to  be  taken,  not  as  a  diAinA 
member  of  the  (entente,  but  in  conne£lion  with  the  words  immediately  following 
"  in  fterling  money,"  and  are  indicative,  not  of  the  quantum  of  the  demand,  but 
of  the  mode  or  quality  of  the  payment  .----That  as  by  the  treaty  of  amity,  all  claims, 
••  whether  of  principal  or  intereft,"  are  to  be  "  determined"  according  to  the 
merits  of  the  feveral  cafes,  "  due  regard  being  had  to  all  the  circumftanccs  thereof, 
"  and  as  equity  and  juftice  (hall  appear  to  require,"  it  obvioufly  follows,  that  the 
Board  are  not  of  neceflity  bound,  by  any  interpretation  of  the  words  of  the  former 
treaty,  to  award  intereft,  during  the  war,  in  all  cafes,  but  may  refufe  to  award  in- 
tereft in  whole  or  in  part,  if  the  merits  and  circumjlances  of  a  cafe  fhall  make  it  juft 
and  equitable  that  it  ftiall  be  denied  or  reduced.  ^  , 

And  therefore  that  any  general  refolution  on  the  fubject  of  intereft,  either  allow- 
ing or  denying  it  during  the  war,  or  for  any  other  time,  is  improper,  and  not  con- 
formable to  the  fubmiftion  in  the  treaty  ;  becaufe  the  allowance  or  denial  is,  by  the 
terms  of  the  treaty,  made  to  depend  on  the  merits  and  circumjlances  of  each  cafe  ;--- 
Not  of  each  claim,  but  of  each  cafe  or  item  of  debt  contained  in,  and  conftituting 
a  part  of  each  claim. 

2nd.  That  "  equity  and  Juftice"  will  require  us  to  deny  intereft  in  a  variety 
of  cafes,  in  fome  during  the  war,  in  others  for  a  longer  term,  and  in  others  alto- 
gether, will  be  evident  on  a  confideration  of  the  nature,  the  meaning,  and  cha- 
radler  of  intereft  :— From  this  confideration  it  may  alfo  refult  that,  in  fome  cafes, 
the  ttjhole  intereft  ought  to  be  awarded.  , 

The  word  ''  Interest"  has  not  always  the  fame  figni'"  ation  :-"Or  rather,  it 
has  tvjo  different  aad  diftinfl  fignifications.  It  fcmetimes  means  •'  the  hire  of  mo- 
"  ney,"  or  "  wages  for  the  uie  of  money :"- --This  was  the  ancient  acceptation  ot 
the  term,  and  is  the  acceptation  in  which  it  is  ftill  ufed  by  writers  on  the  law  of 
nature  and  of  nations,  and  on  political  oeconomics :-— Th's  is  its  proper  import 
when  it  is  ftipulated  to  be  paid  on  a  loan,  in  which  cafe  it  may  be  defciil^'d  as  of 

D  Jirid 


.'•:! 


«?"'»!  ,-Cl*f*-  '* 


fi-' 


[     «4    ] 

Jf ric?  ohWgauon,  bccaufe  it  is  the  eflential  confideration  of  the  contrafl,  and  is  Cm^ 
phatically  a/ar/  of  the  debt  :-—\\.  is  a  diftinguilhing  feature  of  this  fpecies  of  intci 
reft,  that  it  may  bt;  owing  before  the  priiicipal  is  due,  as  in  contrails  for  money  pay- 
able at  adirtant  day,  hut  bearing  a  prefent  annual  intereft*;";  J';^ '|^  ;   '".','      .1." 

Ta  the  ether  fignificaiion  of  the  term,  tntereft  is  fynonimous  with  damages  :• — 
It  is  damages  for  the  breach,  of  contraft,  or  more  properly  ."  it  is  the  common  mea- 
"  fure  c,'"  rf'flwa^w  where  the  contraft  is  for  money,  "2  Tr.  Eq.  lib.  5,  ch.i.  s.  i.. 
I'his  is  the  acceptation  which  moll  frequently  occurs  in  municipal  jurifprudence, 
und  which  chieily  applies  to  that  vaft, variety  of  the  common  tranfaftions  between 
individuals,  in  which  the  failure  of  punftuality  is  a  ground  of  complaint  in  the 
courts  of  jultice  : — In  this  fenfo  it  partakes  effentiaHy  of  the  nature  of  damages  in 
general,  from  which  it  is  only  diiVinguifhable  in  this,  that  it  is  meafured  by  an 
uniform  rule,  "  fixed  by  the  law  to  a  certain  portion  of  the  fum  that  is  due,  for 
"  the  fpace  of  a  year,  and  proportionably  for  a  lunger  or  fhorter  time."  i  /)w«. 
HI/.  3.  tit.  5.  But  conformably  to  the  general  charadler  oi  damages,  and  contrary 
n  the  attribute  of  the  fort  of  interefl  firft  defcribed,  it  can  never  accrue  until  there 
has  been  a  default  of  the  tarty  in  the  performance  of  his.contraftT — and,  like  da- 
mages, it  is  dependent  on  the  circumftances  of  that  default ;  for,  when  it  Ihall 
iommence,  when  it  fliall  ceafe,  when  it  may  hafufpended,  when  it  fhall  he  received,  or 
whether  it  fhall  be  piiJ  at  nil,  are  all  qucflions  to  be  governed  by  the  cirCum- 
rtances,  and  decided  dift'.Tcntly  as  thofe  circumftances  (hall  vary  : — This  fort  of  in- 
tereft  has  been  obvicuily  contemplated  by  the  treaty,  when  it  ha'S  adopted  the  ex- 
prefuons  before  quoted,  and  whicii  it  has  well  defcribed  by  dire<Sing  that  fuch  claims 
liiali  be  determined  "  according  to  the  merits  of  the  feveral  cafes,  due  regard  being 
"  had  to  all  the  circumftances  thereof." 

In  cafes  to  which  tlic  frjl  fenfe  of  the  word  applies,  that  is,  in  cafes  where 
Jntereft  is  of  llrid  obli/^a'-ion,  and  forms  a  part  of  the  debt,  I  agree  that  the 
■-'.'/■o/i?  interert  muft  be  paid,  as  well  during  the  war,  as  for  any  other  period.  I 
think  the  law  of  nations,  and  the  ftipulation  of  the  treaties  equally  produce  this 
(flcrt,  and  that  though  the  ftata  of  war  fufpended  the  remedy,  it  did  not  fufpend  the 
light : — I  incline  to  think  that  the  fame  acceptation  of  the  term  will  apply  to  thofe 
vafes  oi  fpecialty,  for  whatever  reafon  given,  which  exprefsly  bear  intereft  on  the 
■ace  of  the  infrutnent,  altho'  on  tiiis  fubjedl  I  defirc  that  I  may  not  be  confidcred 
;is  concluded  by  this  intimation,  as  the  enquiry  docs  not,  at  leaftjr/,  appear  to  be 
tirentirdly  conneifted  with  this  argument,  in  this  cafe: — The  queftion  of  interell, 
according  to  tlis  ifage  of  a  trade  is  ftiil  more  dcjbtflil,  and  1  decline  at  prefent 
jjiving  any  opinion  upon  it. 

But  as  to  ail  other  kinds  of  debt  v/hich  may  be  tlic  fubjcdls  of  claim,  it  does  not 
feem  to  me  to  admit  of  a  doubt,  that  intereft,  during  the  war,  cannot  rightfully  be 
awarded.  It  is  already  fhewn  that  intereft,  in  cafto  of  every 'n  .•  defcription  than 
thofe  juft  enumerated,  being  in  the  nature  of  ^<?«i7^«,  can  only  accrue  on  the  default 
nf  the  party  : — It  cannot  be  pretended  that  there  is  a  default ,  where,  from  circum- 
ftances ^OicWiVj?  controul  cf  t'^e  party,  payment  is  rendered  impraftlcable  :— -Nor 
can  it  be  denied  that  a  ftate  oi  tvar  between  the  nations  of  :he  creditor  and  debtor, 
is  fuch  a  circumfiance.  This  is  a  pofition  altogether  independent  of  any  fuppofed 
ciftinftion  grounded  on  the  nature  of  the  war  between  the  United  States  and  Great 
Britain,  as  difterent  from  ordinary  wars,  which  has  been  contended  for  in  the  an- 
fwer,  and  fo  elaborately  combated  in  the  refolution  ;  and  it  is  equ.iUy  uninflu- 
enced 


A] 


'l»i  '."'I  I  ■IW)I  IIJUJI. 


enccd  by  any  confidcrations  deduced  from  the  merits  of  the  conteft,  or  from  the 
kgiflative  afts  pafled  on  the  one  fide  or  the  other.  I  agree,  thkt  in  executing  a 
treaty,  defigned  to  terminate  differences  between  the  nations,  ••  in  fuch  a  manner 
"  as  without  reference  to  the  merits  of  their  refpeftive  complaints  and  preten- 
"  fions,  may  be  beft  calculated  to  produce  mutual  fatisfaAion  and  good  under- 
"  (landing,"  thefe  confiderations,  on  either  fide,  are  irrelevant  and  improper  :— 
But  it  is  a  necejfary  incidtnt  ci  all  luars,  to  interdlft  and  cut  off  all  communication 
between  the  individuals  of  the  hoftile  nations  ;  and  this  is  completely  cffefted  wkh- 
out  any  prohibitory  laws  on  either  fide.  It  is  of  no  import,  therefore,  what  thofc 
laws  were,  or  on  which  fide  aggreflion  commenced — it  is  fufficient  to  the  purpofe 
that  the  nations  ivere  at  cpen  war,  and  that  their  people  refpeftively  could  not  law- 
fully have  intercourie  with  each  other.  From  this  ftate  of  things  it  inevitably  re-* 
fiiltcd,  ihat  the  debtor  was  prevented  by  the  intervention  of  a  circDmilance,  not 
attributable  to  him  as  fault  or  laches,  from  compliance  with  his  contradl  ;  and 
that  if  thereby  the  cieiitor  has  fuftaineJ  a  lofs  it  is  damnum  ah/qiie  injuria,  and  he 
ib  not  entitled  to  reparation  in  damages  from  the  debtor. 

If  thii  obvious  inference  from  undeniable  principles  could  need  any  confirmation, 
it  is  to  be  exprefsly  found  in  the  letter  from  Mr.  Hammond  to  !ie  Secretary  of 
State,  complaining  of  infraftions  of  the  treaty  of  peace  by  the  United  States : — 
On  this  very  fubjecl  of  interell  during  thte  waft  he  thus  writes*  ♦»  In  One  State 
"  (Maflachufctts  Bay)  where  great  property  was  at  llake,  jnflict  hat  betn  liieMlly 
"  liifpenfed,  anJ,  notwithllanding  a  particular  regulation  of  the  State  warranted 
"  the  deduftion  of  that  portion  of  the  intereft  on  the  Britilh  debts  which  accrued 
"  during  the  war,  the  courts,  in  conformity  to  ike  plain  terms  of  the  treaty,  have 
"  admitted  and  diredled  the  quantum  of  the  demand  to  be  regulated  hy  the  original 
"  central,  an<i  where  ihe  contraiiicre  interejl,  or  the  cuftom  of  the  trade  jujiified  the 
"  chargH  the  full  intereft  has  been  allowed  to  Britifli  creditors,  notwithltanding  the 
"•  intervention  of  wa.- :"— This  is  conceived  to  be  &  formal  and  exprefs  admifiion, 
Oil  the  pan  of  the  Britifli  government,  that  the  payment  of  intereft  during  tha- 
war,  in  cafes  "  where  the  contract  bore  intereft,  or  ths  cuftom  of  the  trade  juftified 
'<  the  charge,  was  all  that  was  required  by  "the  plain  terms  of  the  treaty  of 
*'  peace"— and  that  in  cafes  of  every  other  defcription,  there  cannot  be  a  reafon* 
able  pretence  to  claim  or  demanJ  it. 

In  truth,  the  books  of  authority  on  natural  and  civil  law,  as  well  as  on  the  laws 
of  England,  leave  no  rooni  for  doubt  on  the  fubjeft : — A  few,  and  but  a  few,  are* 

here  cited.       <  ■■      .  '       •  '  .    '  :     •       .  .....w  uJ  b; . 

.■    ,-.■.  .  ■■'    '■       i;   ■■••   ,',.!i^-,i'    ';.'      *."n.' V  ...  :'.;;    ;  ;.-)f.>oij'.L..'i  avffl   T 

"  Ail  the  forts  of  reparation  of  damage  are  reduced  to  two  kinds ;  one  which  is 
*'  barely  called  intereft — and  the  other  cofts  and  damages." 

1  Do.  lib.  3.  //'/.  5.  ■    '.  .' 

2  Tr.  Eq.  lib.  5.  ch.  i.  s.  I.     '    ■    •  •-• 

"  Intereft  is  the  reparation  of  damages  which  is  due- from  debtors  who  owe  fums' 
"  of  money,  and  who  fail  in  the  payment  thereof."     \Do.  lib.  3.  til,  J;  §   1. 

"  Debtors  incur  the  penalty  of  intereft  by  their  delay  to  pay  what  they  owe,. 
"  according  as  the faid  delay  may  be  imputed  to  them,  and  may  have  that  eife^t,  which- 
"  depends c.  ihe  ««/««  0/ //.-f  fr^^//';;  and  the  circumitanccs.    Ibid,  ' 


rr- 


/  I 


■'■  / 


[  •«  1 

,"  In  cafe  of  accidents  which  hafitn  tuitAfut  any /au/t  of  the  party,  he  will  not 
•*  be  liable  to  reparation  of  damages,  by  the  rule  .hat  nobody  is  to  anfwer  for  acci- 
V.  dents,  exQcpt  therp  bp  fome  fault  on  their  part." 

I  Do.  ubi.  fup.  .    ,      ;   ■ 

v;..i...   .  :..^.  ...  .-.  i....j... ,.,.!,.,,    i,.  a  'J'r-  E^.    Lii.  ^.  ci>.  i.  §  i,.;     -  ^  , 

-■:  I  ^-'i-zT-  'Jt  ;•  ' '••":f;v-    ::•   ,    ':.:■    -:  -    '!   -r>,\   ■■  ■ 

"  By  4(tm»£t  we  underftand  any  lofs  pr  diminution  of  what  is  a  man's  own,  oc- 
"  cafioned  by  tho/ault  of  another  : — And  by  a  fault  we  underftand  every  uHltt<wfMl 
nftoromiffiop."  I  Ruth.  cb.   17.  (  i. 

If  a  misfortnne  has  happened  without  the  fault  of  either  forty,  "  there  is  no 
"  reafon  to  throw  oft'  the  lofs  from  one  innocent  man  to  another  innocent  man  :"— In 
tuch  cafe  potior  eji  conditio  defend^ntis.       .  1  . . 

If:"-:  ,,  ■,.   ;.    ii;         3  Burr.   I3S7,I-,  ..  .;:v, 

"  Damages  are  in  the  /ow^r  of  the  court,  and  therefore  they  ufually  order  them 
"  as  they  fee  convenient."  2  7'r.  £y.  Z/^.  5.  <-^.  1.  §  5.  The  cafes  cited  to  il- 
lullrate  this  pofition  are  alloi  ittterejl. 

«-,;.,  ■  -   . . 

"  The  inAances  in  which  the  court  has  exercifed  its  difcretion,  in  allowing  a 
"  greater  or  lefs  rate  of  intereft,  are  too  many  and  various  to  allow  of  enumera- 


tion."    Ibid  in  not  is. 


ii\r 


■■"ct: 


■ilJUV 


•n'.v,:;!;inM) 


"  It  would  be  unreafonable  that  thofe  things  which  are  inevitable,  which  no  in- 
"  duftry  can  avoid,  no  policy  prevent,  Ihould  be  conftrued  to  the  prejudice  of  anv 

"    ■hrrfati  im    riuhom  there  ii    no  laehei." 

I   Potvell  on  Cent.  446. 


perfoH  in  v^hom,  there  is  no  leches.' 


Tiiere  might  be  added  a  great  many  more  authorities  of  the  mod  unequivocal 
import ;  but  thefe  are  deemed  fuftcient  to  prove  what  has  been  advanced.   - 

3d.  The  claim  in  which  this  refolution  is  offered,  is  a  mod  unfortunate  one  foi 
the  eftablifhroent  of  an  affirmative  rule  on  the  allowance  of  intereft  during  the  war, 
or  even  for  any  period  whatever. 

From  all  that  yet  appears,  and  fo  far  as  a  judgment  may  be  formed  from  the 
claim  and  fchedules  which  accompany  it,  there  is  not  a  fingle  item  which  can  be 
faid  to  come  within  that  clafs  of  contracts,  that  carry  intereft  of  the  firft  defcription 
I  have  mentioned  ;  that  is,  where  the  intereft  is  a  part  of  the  cfebt,  either  by  the 
terras  of  the  contract,  or  even  by  the  ufage  of  trade. 

The  items  are  principally  of  accounts  which  have  been  incurred  in  the  courfe  of 
retail  dealings  in  the  State  of  Virginia  ;  and  which,  fo  i^x  from  being  entitled  to 
intereft  during  the  war,  are  not,  either  by  the  law  of  England  or  America,  enti- 
tled to  intereft  -t  all  as  a  matter  of  courfe : — And  even  if  it  fliould  be  denied, 
that  the  intervention  of  v/ar  is  an  excule  for  the  debtor,  it  cannot  furely  be  pre- 
tended that  it  gives  to  the  creditor  an  accumulative  right  which  he  would  not  other- 
wife  have  poffcned.  .     ,      .     .  ..-.  ,.  .,  ,    ,. 

It  is  aftumed  in  the  anfwer  or  the  part  of  the  United  States,  that  debts  of  this 
defcription  have  at  no  time  carried  intereft  in  Virginia  ;  and  the  contrary  has  no', 
been  aflerted  either  in  the  claim  or  reply. 

And 


:^*-' 


flWHI   I      .ITfTW.-ryi'rTWPW-T  y' 


[       17       ] 

And  the  acknowledged  dodlrineof  the  law  of  England  muft,  on  every  principle 
of  mutuality,  preclude  all  demar     of  interell  in  fuch  cafes. 

It  is  a  general  rule  of  the  Englifh  law,  as  wtll  as  oF  the  civil  law,  that  intered 
(ball  not  be  allowed  on  profiti\  and  tlic  rcafon  aiTigned  is,  that  as  intcrcft,  flridlly 
fpeaking,  is  itfelf  the  frofit  to  which  a  man  is  entitled  for  the  ufe  of  his  money,  fo 
the  right  is  fatislicd  if  that  right  is  obtained  in  another  way,  in  which  cafe  the  pro- 
fit is  in  lieu  of  interetl  --thus,  intcell,  except  in  very  fpecial  cafes,  (hall  not  be 
allowed  on  intercJ}:---'^ov  on  renis  which  aie  the  profits  of  land  that  rcprefents  mo- 
ney:—Nor  on   arrearages  of  <»»»«/'//«,  which  are  compounded  of  pincipal  and  the 

intereil  or  profit Nor  on  goods  fold  and  delivertd,  the  profit  on  which  is  equivalent 

to  the  interelt  on  the  capital  employed  in  the  trade. 

But  whatever  may  be  the  rea(bn,  it  is  moft  clearly  fettled  by  numerous  dccifions, 
both  at  law  and  in  equity,  \)mx  fimple  (ontraHi^  and  debts  on  open  accounts,  and  for 
goods  fitld  and  delivered,  do  not,  of  courfe,  carry  intereft :— And  this  has,  fo  late 
as  in  1793,  been  folemnly  determined  by  the  prcfent  Lord  Chancellor,  even  where 
the  amount  has  been  alcertaincd  by  the  Mailer's  report,  in  the  cafe  of  Creuze  v . 
1.0-ivtb,  4  Br.  Ch.  Rep.  ^17.  Reported  alfo  in  2  Fefiy,  Junier,  157,  under  the  title 
of  Creuxe  v.  Hitnttr—w\\\c\i  cale  was  decreed  after  a  careful  revifion  of  the  rules  and 
praftice  of  the  court  in  former  cafes.  /   ,  i    ,  ,  ■   ,,:•   '    1  :  ;' 

The  opinion  of  the  preceeding  Lord  Chancellor,  in  the  cafe  of  Boddam  v  'Rihy, 
t  Br.  Ch,  Hep.  3,  and  wliich  I  tranfcribe  here  becaufcs  it  is  conclufive  on  u.oft  of 
thefe  items,  Ihcws  alio,  that  tiiey  derive  no  additional  title  to  intereil  from  the  mere 
circumflance  of  their   being  due  on   i.-ila/ices  .—He  fays, 

"  The  cafes  cite.1  apply  only  where  tiiere  arc  accounts   regularly  flatcd  beltveei: 

"  the  parties,  in  which  cafe  there  is  an  implied  contract  on  the  p-irtof  the  debtor 

"  to  pay ;  and  ail   contrads  to  pay,  undoubtedly  give  a  riglht  to  intereft  from  the 

•'  time  when  the  principal  ought  to  be  paid :— -But  this  is  not  fo  here  : — It  is  true, 

"  the  fum  claimed  does,  iii  faft,  appear  to  be  due,  on  a  balance,  at  the  clofe  of 

"  the  account;  but   thcie   was  no   iettlrmcnt,  or  acknowledgment   by  the  debtor, 

"  which  raifes  a  contraft  to  pay,  and  wliich   \s  the  only  ground  upon  vj\i\z\\\nXtrc^  is 

•«  give.T,   1  //'///J.  653,  for  according  to  the  argument  of  the  exceptant,  that  what- 

"  ever  appears  to  be  due  on  the  balance  of  an  account  ihall  carry  intereft,  the  rule 

"  muft  go  to  e-very  debt  for  goods  fid  and  ddivered,  which  certainly  is.net  the  laiv  of 

"  this   countr;.'^ 


There  are  unqueftionably,  many  qualifications  and  exceptions  to  this  rule  relative 
to  interell  on  fimple  contraft  debts,  as  well  as  to  the  rules  relative  to  every  other 
dcfcription  of  debts :  --But  it  is  not  neceffary  to  advert  to  thefe  exceptions  in  an 
.Ti't;unient  of  this  general  nature,  efpeci.ally  as  they  are  not  ftatcd  to  apply  to  any 
part  of  this  cafe  ;---'rhc.e  exceptions  however  prove  how  imprafiticable  it  is  to  ar- 
rive at  any  general  refuh  on  a  liibjeft,  which  is  liable  to  fuch  an  infinite  variety  of 
modifications,  and  how  improper  it  is,  that  any  refolution  (hould  precede  the  proof 
of  the  merits  and  circuinllances  of  the  particular  cafe  in  which  interelt  is  demanded. 

It  would  be  cafy  to  adduce  numberlefs  other  proofs  and  illuflrations  in  fupport  of 
the  principles  herein  advanced  ; — And  alfo  to  l.iy  down  many  other  pofitions  afFedl- 
ing  the  claim  of  interell,  in  whole  or  in  part,  in  various  cafes  fubmitt?d  to  the  de- 
cilion  of  the  Board  :— 1  have  purpofcly  avoided  this  fort  of  anticipation,  and  have 

J-;  '  endeavoured 


m' 


i. 


II 


I 


[      '8     J 

endeavoured  to  be  as  brief  as  poflible ;  becaufc,  as  I  difapprove  altogether  of  thefe 
prcii.ature  and  argumentative  Refolutions,  it  is  proper  that  I  fliouKl  conform  my 
prad^ice  to  this  fentiment,  as  far  as  the  ccurfe  which  has  been  purfued  will  permit, 
tur  the  explanation  and  vindication  of  my  own  opinions,  i 

(Signed)  .   .  1       is        il'r'i 

September  19,   1798.  .  ,,    ,      ,,;,.   ;    .  ,•  .  S;  SITGREAVES. 

Mr.  FiTzsiMONS  read  a  minute  of  His  diflcnt,  which  is  as  follows  :'-*'    * 

I  defire  to  enter  my  dilTent  to  the  Rcfolution  pnlTed  by  the  Board  on  the  i8th 
inft.  in  this  cafe,  on  the  fubjedl  of  intereft  during  the  war-.-for  the  following 
reafons  : — 

Because  the  debts  which  arc  the  fubje£l  of  the  refollitiort,  Were  payable  irt  the 
then  colonies  now  United  States : — And  it  is  admitted  by  the  creditors,  that  fot 
a  confiderable  period  there  were  no  perlbns  in  the  United  States  authorized  to  receive 
thefe  debts : — 

It  therefore  appeals  to  me  to  be  highly  unreafonable,  that  a  debtor  (hould  be 
made  fobjeft  to  the  payment  of  intercft  on  a  debt,  which  the  abfencc  of  the  Cre- 
ditor rendered  it  impolfible  for  him  to  difcharge  : — 

Becaufe,  at  the  clofe  of  the  war,  when  all  its  efFefts  were  ftrongly  imprefTed  upon 
the  minds  of  the  creditors,  an  abatement  of  intereft  for  that  period  was  generally 
nllowed,  and   fettlements  to  a  very  great  amount  have  fincc  been  made  with  that 

allowance. 

Judgments  of  courts,  vcrdifts  of  juries,  and  awards  of  referrees,  have  almoft 
univerfally  been  made  upon  the  fame  principle,  which  proves  irrefiftably  the  general 
opinions  of  its  equity  by  people  perfeftly  well  informed  of  all  the  circumftanccs  of 
the  cafe  ;  nor  ought  their  opinions  to  be  fliaken  by  a  dccifion  given  at  a  time  whcij 
many  of  the  circumftanccs  which  influenced  them  muft  have  loft  their  effeft. 

C  Signed  J 

THO's.  FITZSIMONS. 

THE  fid  minutes  of  diflent  having  been  read,  the  Board  RESOLVED,  That 
in  dccid'  j  againft  an  objedtion  to  the  payment  of  intereft  during  the  war,  main- 
tained generally  and  without  regard  to  the  nature  and  import  of  the  contraft,  exprcfs 
or  implied.  They  do  not  preclude,  hut  neceflarily  fave  all  objeftions  to  the  payment 
of  intereft  which  may  arife  out  of  the  contraft,  or  other  fpecial  circumftanccs  of  the 
cafe. 

Exti'afird  fron  the  proceedings  cf  the  Board, 

G.    EVAN.  S,   Secretarj. 


